Mansplaining the Constitution with Daniel Ducote

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Saturday, July 29, 2017

President Trump's blanket ban on transgender individuals shocked virtually everyone this week, as it was reportedly a decision made completely on the fly and without consultation with virtually anyone in the military community or elsewhere.

As a constitutional conservative, I don't see how this ban isn't flatly illegal. The 14th Amendment's equal protection clause expressly prohibits the federal or state governments from offering any sort of legal protections to some individuals while denying them to others. While admission into the United States Armed Forces is not a right, the government would need to have a specific reason for denying one admission (i.e. physical or mental unfitness) rather than broadly discriminating against an entire "class" of people, in this case people who identify as transgender.

On philosophical grounds, I find the ban to be odiously cruel and unjust. What happened to the days when the right stood for individual rights and promulgated the seemingly obvious principle that people should be judged on their individual merits rather than broad labels that divide people into groups based on things that are largely beyond their control? Quite frankly, I'd expect such a policy from the so-called "social justice warriors" on the left. Isn't the idea that we're inherently defined by the societal "groups" we belong to a core principle of the Hillary Clinton style "identity politics?"

I've seen a lot of conservative pundits congratulate President Trump for reversing Obama-era policies and returning our military to the common sense guidelines that existed before Obama's presidency. However, the U.S. policy has never been to ban all transgender individuals from the military. Transgender individuals have been allowed to serve under the assumption of "don't ask, don't tell," and transgender troops have even been given access to hormone therapy and other cosmetic benefits by the Department of Veterans Affairs after their time in the forces. Trump's vague, broad trio of tweets seemingly bans all transgender individuals unconditionally, regardless of whether they conceal their true gender identity. Even if Trump clarifies that such is not the case and that transgender troops may continue to serve "in the closet," confusion will surely be created by the question of what to do with troops who were openly serving as transgender individuals before the ban was enacted and would now be barred from service by the new policy.

The ridiculous rhetoric from conservative commentators I usually respect and admire, from calling Obama's decision to allow transgender people to serve openly a "social experiment" to thanking Trump for deciding to stop "accommodating transgenderism," has shaken my confidence in the conservative punditry. These talking points are patently ludicrous. All these transgender people are asking for, ironically, is to serve their country just like everyone else. This isn't a debate on offering hormone treatment to transgender troops. This isn't a debate on whether one can truly change his/her gender. This isn't even a debate on which bathroom they should use. All this is really about is equal rights. I'm astounded by the mental gymnastics it must take to justify labeling equal protections under the law as some sort of left-wing social engineering scheme. Honestly, the reactions I've seen from many on the right seem like instances of conservatives staking out a position and then searching for the rationale to justify it.

Some have simply said "we shouldn't be allowing mentally ill people into the military." The problem with this broad idea is that "mentally ill" is arbitrarily defined. Who determines what a mental illness is? The medical community? The scientific community? We already know that medicine and science are (sadly) often corrupted by people with a political agenda. People have all sorts of beliefs one could find outlandish, whether that's the belief that one's gender does not match his/her biological sex, the belief that Santa Claus sneaks into your house through your chimney once a year to give you Christmas gifts, or the belief that there's a magical god in the sky waiting for you when you die with 72 virgins. Are all people who believe these sorts of things mentally ill? That's not really a question that can be objectively answered, and there's no need to answer such a question. There is a need for an objective assessment of one's mental fitness to be a part of the military admission process, but it should not be based on how closely one conforms to the social norms of the time. Given population trends that show the American people shifting away from religious beliefs, one hundred years from now, religion could be seen as a mental illness and transgenderism could be completely normalized. Will the standards for military acceptance suddenly shift to accommodate the new cultural attitudes of the time? Will belief in a higher power be grounds for exclusion from the military, while the belief that boys can be girls and girls can be boys is entirely normal? A truly objective mental health assessment does not need to be adjusted to reflect the social context of its generation; it will withstand the test of time and shall always reveal one's mental fitness.

The bottom line is this: We should have rigorous tests anyone - man or woman - must pass in order to serve in the military. These should include assessments for both physical and mental health. If one passes these tests, they should be allowed to serve. If one passes these tests but is denied the opportunity to serve because of his or her "gender identity," I don't see how that's anything other than blatant, single-minded discrimination. Do I agree with the idea that gender is a social construct or that we should cater to the whims of anyone who wakes up one morning and claims to be "non-binary?" Not necessarily, but no one's asking us to approve of "transgenderism" as a concept, or hormone therapy as a medicine. This is about allowing qualified individuals to serve our country and be judged on their individual merits.

The debate on whether we should offer hormone therapy to transgender troops is a separate animal. In an ideal world, healthcare would not be tied to the workplace at all. Everyone would receive the appropriate pay for the service they provide, and how they choose to spend that money would be their business. However, no one can sanely justify creating a false binary choice between offering unlimited cosmetic operations to self-proclaimed "transgender" troops on the taxpayer dime and banning anyone who publicly or privately experiences gender identity issues from serving altogether.

Wednesday, June 28, 2017

Senator Rand Paul (R-KY) sent a letter to Senate Majority Leader Mitch McConnell (R-KY) outlining his expectations for an Obamacare repeal bill. While Senator Paul's intentions genuinely seem to be good, he's doing more to undermine the conservative position on Obamacare repeal than he realizes.

The letter focuses almost entirely on the deficit spending components of the GOP's repeal proposal. While I agree in principle with Paul's view that government spending should be reigned in, deficit spending in and of itself is not a problem as Paul portrays it. The reason conservatives are generally opposed to deficit spending is the possible eventuality that taxes will ultimately have to be increased so that the government can pay back its debts. As long as the government eventually manages to pay back its loans and cut spending and taxes don't get raised, deficit spending isn't a matter of great concern. However, Rand doesn't realize this. He's too caught up in the Ayn Rand-esque ideological libertarian dogma, one of the core principles of which is that government spending is an abomination and must be reigned in at all costs. This ideological battle for libertarian purism has no practical benefits and may result in every word of Obamacare being kept in place.

While the letter discusses heavily the insurance company bailouts and tax credits, a mere three generic, unenthusiastic lines are devoted to discussing the most crucial component of Obamacare that must be repealed - the insurance regulations. These regulations' unconstitutional interference in the private sector is what has driven up premiums for millions of Americans, making health insurance unaffordable for many families. These rising premiums have helped Republicans to score massive wins across the country, including in many solidly Democratic states, over the past eight years. Americans don't rush to the polls to vote for Republicans because they're up at night fretting over how much money America is borrowing from other countries. They care about the cost of health insurance, how they're going to pay the bills, and taxes. And they've spent the past eight years giving the right a mandate to bring their premiums down at the polls. This is why Senators Ted Cruz (R-TX), Ron Johnson (R-WI) and Mike Lee (R-UT) have chosen to focus their discussion of Obamacare repeal on the costly insurance regulations. Repealing these will actually improve the lives of millions of Americans, making health insurance cheaper and leading to rewards for the GOP in the 2018 midterms and beyond. Rand Paul's more principled, ideological approach of focusing on the deficit alone will not solve the problem of rising premiums and it surely won't lead to more electoral victories for the Republican Party.

Would a perfect repeal bill nix the subsidies and tax credits? Of course. But there's simply no way we're going to get a perfect bill through the Senate with a slim 52-member Republican majority and a caucus full of liberal Republicans, many of whom come from states that have already adopted Obamacare's Medicaid expansion. Senators Dean Heller (R-NV) and Susan Collins (R-ME) already seem unwilling to vote for almost any version of the repeal bill. Several other moderate senators have signaled they won't vote for a bill that doesn't include the tax credits, and even with these credits their support is shaky. As of right now, there seems to be an ever so narrow path to passing a decent bill that repeals the most crucial elements of Obamacare in the Senate. It involves the conservative wing of the Senate using its leverage to sway reluctant leadership to repeal all of the ACA's insurance regulations. Collins and Heller would probably defect, but with the subsidies, tax credits and delayed Medicaid rollback left untouched, leadership should be able to barely sure up the support of every other Republican senator. The bill would barely squeak its way to 50 votes and Vice President Mike Pence would break the tie.

But unfortunately, Rand Paul is crushing this already slim path to repealing Obamacare over a silly obsession with the deficit spending. By stubbornly refusing to negotiate on any bill that includes subsidies, Paul is choosing to fight a losing battle. In effect, he's giving up his political capital by making himself a hard "no" on this bill no matter what concessions leadership is willing to make (of course, short of a completely deficit-neutral bill). Should Paul choose to stick with this dogmatic, ideological approach to the healthcare negotiation, he may ironically be the one man who completely destroys the chance that any sort of Obamacare repeal is passed in the foreseeable future. Rand's libertarian purism may be what saves Planned Parenthood funding, keeps Obamacare's regulations and taxes in place, and allows premiums to continue to steadily rise year after year. Even worse, Rand's purism may force Republicans to strike a deal with Democrats to save Obamacare, which would, quite poetically, involve an obscene amount of subsidies and bailouts.

What a cruel twist of fate. The savior of Obamacare won't come from the #TheResistance keyboard warriors who spend their days tweeting and spamming the voicemail of Republican Congressmen in other states. It won't come from a group of screaming hippies wearing pussyhats and holding signs that read "Please don't kill me." It won't even come from any Democrat in the House or the Senate. Rand Paul, a hardcore libertarian, may be the one man who can save Barack Obama's only major legislative accomplishment.

Friday, June 9, 2017

The late, great conservative Andrew Breitbart once famously said, "If you can't sell freedom and liberty, you suck." This statement rings truer today than perhaps any time since the revolutionary right-wing journalist's death. A stable majority of Americans view the Republican Party unfavorably. President Trump's approval is at a historic low just over four months into his presidency. Democrats have a seven-point edge in party affiliation over Republicans, the highest it's been since the 2016 presidential election season began in April 2015. Perhaps most frightening of all, the GOP is losing the millenial generation, with nearly half of voters under 30 who were Republicans two years ago having defected from the party since then. Although Republicans control the White House and both chambers of Congress (as well as a majority of governor's chairs and state legislatures across the country), the generic congressional ballot for 2018 has many on the right fearing that the Republicans' time in power will not last. Some have even speculated that socialism is inevitably and imminently coming to the United States.

How has the Republican Party fallen so far from the grace of the Reagan years? The problem isn't that Republicans have lost the ability to sell the message of liberty to the American people; it's that liberty is no longer the Republicans' message. President Trump ran a campaign chocked-full of left-wing rhetoric and Democratic talking points. He often railed about Obamacare being "disastrous" and "failing," but never articulated just what it was about Obamacare that was so bad. In fact, Trump championed keeping the Medicaid expansion and so-called "protections" for people with pre-existing conditions, two of the most damaging parts of President Obama's unconstitutional healthcare law. Trump also campaigned on economic protectionism, vowing to end free trade deals, impose tariffs on imports from China and Mexico, and prevent companies from doing more business overseas where labor and resources are cheaper. Furthermore, he vowed not to tamper with Social Security, Medicare or Medicaid, three of the most harmful, unconstitutional government programs in American history and the "three horsemen" of the apocalypse that is the rise of socialism in the United States. To make matters worse, the president and his daughter Ivanka have begun pushing for legislation forcing employers to offer paid family leave to their employees, essentially making business owners pay people to have children and stop coming to work. (This is actually one of the primary planks of the Democratic Party's platform and was a hallmark of socialist Bernie Sanders' presidential campaign last year.) When the man who is the face of the Republican Party seems to reject the very notion of conservatism and individual liberty, what does being a Republican even mean anymore? And who is there left to advocate for the conservative principles Republicans used to stand for?

Members of the Republican Congress are by and large no better than President Trump. They seem to be trying to renege on their promise to repeal Obamacare and instead merely trim the edges of the Democratic former president's signature legislative achievement. They have largely fallen in line behind Trump's left-leaning agenda and have talked about a $1-trillion infrastructure bill (in a country that is currently $14.3 trillion in debt). Fiscal responsibility, free-market capitalism, and a limited government that allows people to keep more of what they earn and small businesses to operate as they please with little interference from Washington bureaucrats used to be the pillars of the Republican Party. Today, few Republicans seem willing to admit to valuing these ideas at all and almost none is able to make a cogent defense of conservative principles. The new Republican messaging tactic seems to be distract voters into electing Republicans for reasons unrelated to a conservative policy agenda, employing a combination of PC outrage, character assassination, and corruption charges against opponents, while keeping any sort of fiscally responsible economic message under wraps, hoping that voters will never catch on and somehow any remotely conservative agenda that gets passed will be buried under a news cycle about Russia or Hillary's emails.

Why has this become the Republicans' messaging strategy? Quite simply, it's because Republicans don't generally believe in conservatism. What they do actually believe varies from person to person, but essentially, there are five generic Republican politicians, each with a different "school of thought."

1. Liberal Democrats disguised as Republicans: Prominent examples include Senators Bill Cassidy (R-LA) and Lisa Murkowski (R-AK). These people are simply liberal ideologues. They believe whole-heartedly in the pillars of the Democratic Party and despise the conservative ideology. They usually come from red states where only Republicans can get elected to statewide offices, and as such they have to register and run as Republicans so that they can get elected to Congress and enact their liberal agenda. They will often even defy their own party's establishment, attacking their proposals from the left. Cassidy infamously made a fuss over the GOP's Obamacare repeal proposals because he felt they didn't do enough to force insurance companies to pay the costs incurred by people who wait until they get sick to purchase health insurance (although every legitimate fact-checker points out that the GOP's proposals were already more than friendly to people with "pre-existing conditions"). When you have big-name Republicans preaching liberal talking points and opposing conservatism tooth-and-nail, who needs Democrats?

2. Establishment Republicans: These fellows make up perhaps most of the Republican Congress. They're standard, old-school politicians. They don't have any strongly held convictions. Some are perhaps moderately liberal, others perhaps moderately conservative, but it doesn't matter, as they don't vote based on their beliefs. They simply vote how they are instructed to by the party leaders. Sometimes this may mean a vote for a good bill, other times not so much. These people are only in it for the money and power. They couldn't care less what they have to say or do to get it, and would gladly switch parties tomorrow if it meant a safer path to re-election or a chance to pursue a higher office. (See former governor of Florida Charlie Christ and former senator from Pennsylvania Arlen Specter.) They are used to repeating standard talking points and memorized speeches in robotic fashion and they often encounter tough questioning from critics and reporters when their talking points contradict one another. (For example, "How can you support ending food stamp programs for poor people if you don't support ending welfare for wealthy corporations?") Party loyalty is the theme of their advocacy, not ideology, which is why they often struggle to make a principled case for why their policies are right for America.

3. Republicans in name only (RINO): See Senators John McCain (R-AZ) and Lindsay Graham (R-SC). This type of Republican is generally a single-issue politician. Perhaps they care about strong national defense, or immigration, or trade deals. Whatever the case may be, there is one issue that draws them to the Republican Party and they are fiercely "conservative" on that one issue. On all other issues, they either could not care less what policies are passed or maybe even agree with the left. (McCain, for example, recently killed a GOP attempt to repeal an energy regulation using the Congressional Review Act.) These people often open themselves up to attacks based on hypocrisy, like, "If we can't afford to spend money on X (my issue), then why should we spend money on Y (your issue)?" These criticisms are actually often valid and can only be leveled against one who is not ideologically pure. The simple answer these politicians would like to give to such questions is, "Because my issue is more important than yours." Sure, they can make a strong case for the right-wing position on one issue, but after that they become completely useless if not counterproductive.

4. "Abstract" Republicans: Former governor Mike Huckabee (R-AR), former senator Rick Santorum (R-PA) and Senator Marco Rubio (R-FL) come to mind. These people may disagree with conservatives on nearly every issue. Huckabee wants the federal government to set aside taxpayer dollars to fund the arts. Santorum wants to raise the minimum wage. Rubio supports paid family leave. However, they are still Republicans, usually due to some sort of abstract feeling of tribalism. It's often a deeply held religious belief, or a fear of immigrants, and the feeling that Republicans are more sensitive to social conservatism, while Democrats are godless, anti-American heathens who want to give everything to the blacks, Mexicans and Muslims. There are a lot of constituents like this who live in the Bible Belt states, too, and they genuinely care about which candidate wants to keep up a statue of Robert E. Lee in the city park more than they care about which candidate wants to raise their taxes and cut off funding for their oxygen tanks. Surprisingly, these people, despite not agreeing with the right on many issues that substantially affect public policy, are some of the most fiercely loyal Republicans. While they make great advocates for defunding Planned Parenthood, protecting the rights of the unborn, eliminating employer mandates for birth control coverage, and cracking down on illegal immigration, they often get in the way of a truly fiscally responsible conservative agenda and many want the government to spend more to give handouts to the lower-middle and lower classes.

5. The mythical conservatives: Well, not entirely mythical. There's the House Freedom Caucus and Senators Mike Lee (R-UT), Ted Cruz (R-TX) and Rand Paul (R-KY). There are also a few decent governors across the country, Matt Bevin (R-KY), Scott Walker (R-WI), and former governor Pat McCrory (R-NC), to name a few. These people are the most conservative and ideologically consistent politicians and they also make the best advocates for conservatism, as they can genuinely defend their policies because they actually believe what they are saying. Unfortunately, these people are far and few and often don't get support from the DC establishment, making it difficult to get their message out and achieve upward mobility. Sen. Cruz's defeat in the Republican presidential primary last year was largely viewed as a result of his lack of connections with the DC establishment, cutting off his access to last-minute funding and endorsements in his effort to beat Donald Trump for the nomination. Former Speaker of the House John Boehner (R-OH) famously expressed his joy that Trump beat Cruz for the nomination due to the ire of the establishment Cruz incurred during his short tenure in the Senate. One must wonder whether establishment leaders like Bohener are still joyful today over Trump's becoming the head of the GOP.

With such a mediocre selection of people to represent conservatism to the public, it's no wonder people don't believe in conservatism (according to public opinion polls on a number of issues), and it's no wonder the Republican Party, which stands for nothing other than winning elections for people with Rs by their names, is so unpopular and continues to bleed support by the day. The GOP itself, for the most part, does not believe in individual liberty. President Trump is merely a symptom of the problem the party establishment's leaders have been creating since the Bush years. The Republicans have become the party of big government, corporate welfare, and European socialism, while the Democrats have gone so far off the spectrum they're now just a bunch of people who like to think of laws as merely "suggestions." As a result of the failed big government policies of both parties, Americans have begun to feel like both sides are screwing the middle class in favor of big corporations, illegal aliens, and other countries, which is why it was so easy for people like Sanders and Trump to develop large followings using populist rhetoric. However, as Trump's "status quo behavior" as president has proven, this populist rhetoric is rather hollow. Now that big government Republicanism, big government liberalism, and big government right-wing populism have failed to turn the country around, is it possible the next president will finally be a conservative?

Of course not! We still haven't tried big government left-wing populism yet!

Saturday, June 3, 2017

"I created you, and I will be your end!" the Greek god of the sky, Zeus, shouts to his son Kratos in the legendary video game God of War III. Ironically, Kratos will go on to kill his father and, subsequently, himself by the story's end. This classic concept has become almost a cliché, the idea of man creating something that takes on a mind of its own and ends up becoming more powerful than its creator and needing to be destroyed in order to protect the very existence of mankind. It's the basis for the movie Avengers: Age of Ultron, in which scientist Dr. Henry Pym creates a robot so intelligent that it ultimately goes rogue and threatens planet Earth. It's the idea behind automation, which is slowly killing factory jobs in rural America. It's the very concept behind the evolutionary cycle of man. We are all spawn of humans (except, perhaps, John Kerry), who nurture us as we steadily grow stronger and they grow weaker. It's a natural cycle that prepares us to take our parents' place in society upon their deaths. This is the principle behind the Oedipus and Jocasta complexes, the subconscious rivalry young boys and girls have with their same-sex parents over the affection of their opposite-sex parents. And, yes, this is even becoming a reality in the three-branch system of government our founders established 241 years ago.

Many on both the left and the right seem to misunderstand the concept of inalienable rights. The
Constitution was written by people who knew all too well the dangers of a
tyrannical, overreaching government and fought a war for their basic rights as
human beings. It was designed with the belief that certain rights transcend any human system of government and that no man has the right to take these away from his fellow men, among these rights being life, liberty, and
property.

I recently had a discussion with a leftist over the Supreme Court’s
power to interpret the Constitution. Her argument was that, if the Supreme
Court rules a law constitutional, then the law is officially constitutional, regardless of what the actual text of the Constitution reads. There can be no further discussion or debate on the constitutionality of the policy, and the ruling cannot be overturned. This seems to be a circular argument, as it essentially asserts, “The
Supreme Court must follow the Constitution, and the Constitution means whatever
the Supreme Court says it means.” By this logic, the Supreme Court would be
able to rule away any right, including the inalienable rights to life,
liberty, and property, simply by falsely declaring that they are not protected
by the Constitution. Where does this stop? Can the Supreme Court rule that the
Constitution says all members of a minority race or religion are to be placed
in internment camps, as President Franklin Delano Roosevelt once did? Can the Supreme Court rule that
the president has the power to write his own laws independent of Congress, as
President Obama did by ratifying a global treaty without senatorial consent?

When the one branch of government
tasked with defending the Constitution and our inalienable rights goes
rogue, will we simply sit back and give up our basic rights as humans, allowing ourselves to become slaves
to whoever the courts tell us is our ruler? Much like Ultron in Avengers, the judicial branch is a man-made institution with an intended purpose. It was written into our Constitution to protect us from a tyrannical government, to be an independent check on the excesses of power possessed by the legislative and executive branches. But what happens when the judicial branch itself becomes tyrannical? Over the past few years, and especially since President Trump's inauguration, we have seen judges at every level of the court system rule with their own partisan political agendas in mind, rather than in a bona fide effort to actually interpret the text of the law as it is written. Whenever any apparatus abdicates its duty to perform the task it was designed to perform, it follows that its creators have two choices: revise or replace the tool, or accept the fate of being run into extinction by their own creation.

A man-made device does not have ultimate authority over the very men who made it; it only has as much power as its makers choose to give it. Should the judicial branch continue upon the rogue path on which it has embarked, the path of essentially writing policies with a gavel, will We the
People take the initiative ourselves to protect our rights from a
tyrannical government so that our civilization does not crumble? Or will we leave future generations to inherit a savage society in which mankind is enslaved to its own creations?

Just as man himself is imperfect and vulnerable to corruption, man's institutions are inherently as flawed as mankind itself. We should absolutely be cognizant of the real threats the institutions man has designed continuously present to our existence. A judge or justice is not inherently “legitimate” simply because he has gained the favor of 51 politicians in a country of 326 million people. Not only are judges part of a man-made system, but they are men themselves, and as such they're deeply flawed and should never have the power to vote away the inalienable rights of an entire nation, just as we wouldn't allow any of our congressmen or a president to do so. A body of nine individuals cannot be trusted unequivocally to protect our liberties. We must always remain vigilante and watchful of the decisions our judicial branch is handing down and remember that there will inevitably come a time when our institutions grow boorish and unruly. And it will then be our responsibility to reform or, if necessary, destroy them, so that they do not bring about our demise.